Clowdis v. Silverman et al

Filing 148

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/28/2019. Copy mailed to plaintiff as directed. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR TBE EASTERN DISTRICT OF VIRGINIA
Richmond Division

WILLIAM G. CLOWDIS, JR., M.D.,
Plaintiff,
v.

Civil Action No. 3:15-cv-128

JOEL JEREMY SILVERMAN, M.D., et al.,
Defendants.
MEMORANDUM OPINION

This

matter

is

before

the

Court

on

the

Commonwealth

Defendants' THIRD AMENDED MOTION TO DISMISS (ECF No. 106); RENEWAL
AND SUPPLEMENTATION OF MOTIONS TO DISMISS BY DEFENDANTS JOEL JEREMY
SILVERMAN,

M. 0.;

MCV

ASSOCIATED

PHYSICIANS;

AND

VIRGINIA

COMMONWEALTH UNIVERSITY HEALTH SYSTEM AUTHORITY (ECF No. 108); and
SECOND

RENEWAL AND

SUPPLEMENTATION OF MOTIONS

TO

DISMISS

BY

DEFENDANTS JOEL JEREMY SILVERMAN, M.D.; MCV ASSOCIATED PHYSICIANS;
AND VIRGINIA COMMONWEALTH UNIVERSITY HEALTH SYSTEM AUTHORITY (ECF
No. 129). For the reasons set forth below, these motions will be
GRANTED in their entirety.
BACKGRO'OND

This is the latest chapter of a case first filed with the
Court in 2015.

In October 2015, Plaintiff William G. Clowdis,

Jr., M.D. ("Clowdisu), proceeding prose, filed his SECOND AMENDED
COMPLAINT FOR MANDAMUS AND DAMAGES (ECF No. 15)

("SAC") against

various Defendants,

including the "Commonweal th Defendants" 1 and

the "VCU Defendants" 2 (both sets of Defendants are hereinafter
referred to as "Defendants").
Clowdis

objects

to

the

The essence of the SAC is that

suspension

of

his

medical

license

by

Virginia officials, and alleges various procedural and legal flaws
that

he

thinks

are

inherent

in

the

suspension.

The

factual

background as alleged by Clowdis was detailed in the Court's 2016
MEMORANDUM OPINION (ECF No. 77), and is set forth again below.

I. Factual Background Underlying the Second Amended Complaint
Clowdis states that he is a former physician who earned a
license

to

practice

medicine

and

surgery

in

obstetrics

and

gynecology in the Commonwealth in 1991. SAC i i 5, 20, 26 (ECF No.
15). Because of a prolonged illness between 2001 and 2004, Clowdis
voluntarily inactivated his Virginia license beginning in 2001.
Id. i i 22, 26. The illness was exacerbated by the use of doctor1

The Commonwealth Defendants include:
the Commonwealth of
Virginia; the Department of Health Professions ("DHP"); the
Virginia Board of Medicine ("Board"), which is a part of DHP;
Virginia Commonweal th University ( "VCU") ; the Virginia Heal th
Practitioners' Monitoring Program ("HPMP"); William Harp, M.O.,
Executive Director of the Board; Jennifer Deschenes, Deputy
Executive Director of the Board; investigator Sherry Foster, who
works in the Enforcement Di vision of DHP and assisted in the
investigation of Dr. Clowdis' case; investigator Loretta HopsonBush; and Amy Stewart, case manager for HPMP. See ECF No. 107 at
1 n.1.
2

This group consists of: Joel Jeremy Silverman, M.D.; MCV
Associated
Physicians
( "MCVAP") ;
and Virginia
Commonweal th
University Health System Authority ("VCUHSA"). See ECF Nos. 109,
130.
2

prescribed medications that induced adverse physical and mental
symptoms. Id.

':![':I[

23, 24. During his illness and while under the

influence of these prescription medications, Clowdis was involved
in an incident at his residence that resulted in a felony charge
in Colorado state court.

Id.

24, 25, 28. The Colorado state

':![':I[

court placed Clowdis in a diversion program, whereby his felony
conviction would be erased contingent upon successful completion
of a period of court supervision. Id.

':![':I[

25, 28 n.2. Clowdis was

taken off his prescription medications in 2004, and his treating
physician cleared him to return to the practice of medicine in
2005.

Id.

':I[

26.

di version program,

Clowdis

completed

the

Colorado

state

court

with the result that the felony charge was

dismissed with prejudice.

Id.

':I[

28. While being weaned off his

prescriptions, Clowdis voluntarily enrolled in a physician health
monitoring program in Colorado known as the Colorado Physician
Heal th Program ( "CPHP") . Id.
In December 2006,

':I[

27.

after completing the Colorado diversion

program, Clowdis received an offer to work as an OB/GYN at a West
Virginia hospital. Id.

':I[

29. CHCP could not monitor Clowdis once

he left Colorado, and requested that Clowdis notify the appropriate
monitoring program in Virginia, the state in which he was licensed.
Id.

':I[

30. Clowdis disclosed his participation in CPHP to Virginia's

Health

Practitioner

Monitoring
3

Program

("HPMP")

under

a

confidentiality agreement. Id. 1 30. HPMP determined that Clowdis
could not participate in HPMP because he resided in West Virginia.
Id.

~

31. Clowdis alleges that,

agreement,
Board")

HPMP

informed the

about Clowdis'

in breach of the confidentiality

Virginia

Board of Medicine

felony conviction.

Id.

1

30.

( "the

The Board

revoked Clowdis' medical license without a hearing on the basis
that Clowdis was a convicted felon. Id.~ 31. The Board also placed
a record in the "National Practitioner Data Bank" ("NPDB") stating
that Clowdis was a convicted felon. Id.~ 39. Clowdis alleges that
he promptly informed the Board that he was not a convicted felon.
Id. 1 32.
Between 2005 and 2010, Clowdis received forensic psychiatric,
independent medical,

and

competency evaluations,

found him fit to return to practice.

Id.

came from Defendant Joel Silverman, M.D.

1 41.

all

of which

One such review

("Silverman"). Id.

At an unspecified subsequent point between 2007

and 2011,

Clowdis applied for reinstatement of his Virginia medical license.
Id.

~

37. Initially, the Board informed Clowdis that it would not

reinstate his license because of Clowdis' history of mental health
problems and his past receipt of disability benefits.
2011,

four

years after his

initial suspension,

Id.

In

the Board gave

Clowdis a hearing on reinstatement. Id. 1 40. Silverman's report
played a substantial role in the decision-making process.
4

Id.

~

4 9.

Following the hearing, in 2011, the Board issued an Order in
which it made formal findings of fact that:

(1) Clowdis showed no

evidence of current psychopathology or substance abuse, and (2)
the

felony charge against

him had been dismissed.

Id.

-n 42.

Nevertheless, the Board made a finding of law that Clowdis was a
convicted felon. Id.

On this basis, the Board stayed Dr. Clowdis'

suspension, contingent on his participation in HPMP monitoring.
Id. -n 45. The HPMP monitoring contract required Clowdis' compliance
with all HPMP orders, upon penalty of suspension or revocation of
his medical license. Id. -n 46. Although Clowdis asserts that the
hearing was flawed by certain enumerated procedural and legal
errors,

Clowdis

did not

appeal

the

ruling within

the

30-day

deadline. Id. i 45.
After the 30-day deadline to appeal, HPMP allegedly informed
Clowdis that he would not be permitted to work indefinitely,
restricted Clowdis from leaving Virginia, and restricted Clowdis
from making phone calls to out-of-state hospitals interested in
hiring him. Id. -n-n 47-48.

At about this time, Clowdis also learned

that his evaluator, Silverman, was the CEO of HPMP. Id. -n 49-50.
Clowdis suspended participation in HPMP because he could not comply
with HPMP' s prohibition on employment and because he disagreed
with the terms of HPMP's monitoring contract. Id. -n-n 52-54.
5

As a result of Clowdis' non-participation in HPMP, the Board
convened a new hearing in February 2013, which Clowdis asserts was
flawed by certain enumerated procedural and legal errors.
55.

The

Board

reinstated

Clowdis'

suspension.

Id.

Id.

'I[

Clowdis

appealed the Board's decision to the Circuit Court for the City of
Richmond (the "Circuit Court"). Id.

'I[

56. Clowdis alleges that the

Board did not send certain records to the Circuit Court, with the
result that litigation there was delayed. Id.
Lastly, Clowdis alleges that "Defendants,
limited

to

the

Medical

discriminatory

acts

included

in

"acts

Board

against

and

Dr.

retaliation

of

including but not

the

NPDB,

Clowdis

to

this

have

continued

present,"

complaint,

which

whereby

the

Medical Board reported false information against Plaintiff to the
NPDB, which the NPDB published, in June 2015." Id. 'Il 60.
II. Procedural Context for the Pending Motions
In 2015, Clowdis filed this action against a host of entities
and individuals involved with his suspensions.

Relevant to the

pending motions, the SAC alleged, inter alia, the following claims
for relief:

Discrimination Based on Disability under Title II of

the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et
~

(Count I); a violation of Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794 (Count II); retaliation in violation
of Title II

of the ADA,

42

U.S.C.
6

§

12203

(Count

III);

and a

violation of the Due Process Clause of the Constitution and 42

u.s.c.

§ 1983 (Count IV) . 3 SAC i i 62-147 (ECF No. 15). The various

defendants filed a first set of MOTIONS TO DISMISS the SAC. See
ECF Nos. 24, 29, 49, 55.
After considering the parties' positions on these MOTIONS TO
DISMISS, the Court granted them in their entirety in a MEMORANDUM
OPINION dated May 5, 2016. ECF No. 77. The Court held that Younger
abstention precluded its exercise of jurisdiction because Clowdis
had ongoing, related litigation in Virginia state court. Mem. Op.
at 12-20 (ECF No.

77).

The Court dismissed the claims against

Defendant National Practitioner Data Bank on ripeness grounds. Id.
at 27. Clowdis appealed.
In an unpublished,

per curium opinion,

the Fourth Circuit

"affirm[ed] the district court's order dismissing Clowdis' claims
for

injunctive

and

declaratory

relief"

but

"vacate[d]

the

dismissal of his claims for damages and remand[ed] with instruction
to stay these claims until resolution of Clowdis' state appeal."
Clowdis v. Silverman, 666 Fed. Appx. 267, 271 (4th Cir. 2016). The
claims over which the Court was to retain jurisdiction were claims
for

"damages

for

the

alleged violation of his

constitutional

rights, as well as damages for the alleged violations of the ADA

3

As discussed below, the other Counts in the SAC are no longer
before the Court.
7

and the RA." Id. at 270.
Following this decision of the Court of Appeals, this Court
ORDERED "that the plaintiff's claims for damages with respect to
alleged

violations

of

his

constitutional

rights

and

alleged

violations of the American Disabilities Act and the Rehabilitation
Act,

Counts I through IV,

are reinstated and are stayed pending

resolution of the plaintiff's state court proceedings." ECF No.
85. The Court further ORDERED the parties to file periodic status
reports on the

state court proceedings,

id.,

which were

filed

between February 2017 and April 2018. See ECF Nos. 86-89, 91-94,
97-100.
On August 1, 2018, following the conclusion of Clowdis' state
court proceedings,
this

Court's

ORDER

the Court ORDERED that "the stay imposed by
(ECF

No.

85)

entered

January

23,

2017

is

lifted." ECF No. 103. The Court noted that "COUNTS IV through XI
are no longer before the Court having been previously dismissed,
and that

decision was

affirmed by the

Appeals for the Fourth Circuit." Id.

United States Court

of

The Court further ORDERED

that the Defendants could renew any motions to dismiss the SECOND
AMENDED COMPLAINT FOR MANDAMUS AND DAMAGES
"orderly," count-by-count manner.

(ECF No.

15)

in an

Id. Because of the significant

number (and confusing nature) of documents filed up to that point
by Clowdis,

the Court further ORDERED that Clowdis "shall file
8

nothing until the defendants file any motions that they may file
pursuant to this ORDER and then the Plaintiff may respond in due
course." Id.
Pursuant to that ORDER,

the Commonwealth Defendants

filed

their THIRD AMENDED MOTION TO DISMISS (ECF No. 106) and supporting
memoranda

(ECF Nos.

107,

119). Clowdis responded in opposition.

ECF No. 114. Likewise, the VCU Defendants filed their RENEWAL AND
SUPPLEMENTATION OF MOTIONS TO DISMISS BY DEFENDANTS JOEL JEREMY
SILVERMAN,

M. D.;

MCV

ASSOCIATED

PHYSICIANS;

AND

VIRGINIA

COMMONWEALTH UNIVERSITY HEALTH SYSTEM AUTHORITY (ECF No. 108) and
supporting memoranda

(ECF Nos. 109, 120). Again, Clowdis opposed

this motion. ECF No. 115.
In reviewing these motions and memoranda,

the Court became

aware that Count IV of the SAC (ECF No. 15) should still have been
before the Court because it sought damages for an alleged violation
of the Due Process Clause of the U.S. Constitution. See ORDER (ECF
No. 128); SAC i 97. Accordingly, the Court reinstated that Count;
lifted the

stay as

to it;

and provided the VCU Defendants

opportunity to amend their MOTION TO DISMISS
file supplemental memoranda
ECF No. 128.

(ECF No.

108)

an
and

(as well as a response by Clowdis) . 4

The VCU Defendants then filed their SECOND RENEWAL

4

The Commonwealth Defendants' THIRD AMENDED MOTION TO DISMISS (ECF
No. 106) already addressed Count IV, so they did not need to
respond to this ORDER. ECF No. 128.
9

AND SUPPLEMENTATION OF MOTIONS TO DISMISS BY DEFENDANTS JOEL JEREMY
SILVERMAN,

M. D.;

MCV

ASSOCIATED

PHYSICIANS;

AND

VIRGINIA

COMMONWEALTH UNIVERSITY HEALTH SYSTEM AUTHORITY (ECF No. 129) and
supporting memoranda (ECF Nos. 130, 134). Clowdis opposed it. ECF
No. 131.
Now pending before the Court are the Commonwealth Defendants'
and the VCU Defendants'
129)

the

MOTIONS TO DISMISS

remaining Counts

(ECF Nos.

106,

108,

of the SECOND AMENDED COMPLAINT FOR

MANDAMUS AND DAMAGES (ECF No. 15). The remaining Counts are Counts
I through IV. See ECF No. 128.

The Commonwealth Defendants bring

their MOTION pursuant to Fed. R. Civ.

P.

12(b) (1)

and 12(b) (6).

The VCU Defendants bring their MOTION pursuant to Fed. R. Civ. P.
12{b) (1),

12(b) (4),

and 12(b) (6).

These MOTIONS have been fully

briefed and the matter is ripe for decision.
LEGAL FRAMEWORK

I. Clowdis' Pro Se Status
Clowdis
typically

is

proceeding

construes

in

documents

this
filed

matter
by

a

pro
pro

se.
se

liberally. See, e.g., Erickson v. Pardus, 551 U.S. 89,

The

Court

plaintiff
94

(2007)

(per curiam). However, Clowdis alleges that, while waiting for the
Board to act on reinstating his medical license between 2007 and
2011, he completed law school. SAC~ 35

(ECF No. 15). He passed

the New York State bar examination in 2011, "but his bar admission
10

was placed on hold [as] a result of his suspended medical license."
Id.

'1[

36.
"The

attorneys

Fourth

Circuit

proceeding

pro

has

not

explicitly

se

are

entitled

decided
to

this

whether
liberal

construction." Downing v. Lee, No. l:16-cv-1511, 2017 WL 3082664,
at *7 (E.D. Va. July 18, 2017)
of Governors,

824 F.3d 62,

72

(citing Kerr v. Marshall Univ. Bd.
(4th Cir.

2016)).

This Court has

declined to apply this liberal treatment to lawyers proceeding pro
se. See Rashad v. Jenkins, No. 3:15cv655, 2016 WL 901279, at *2-3
(E.D.

Va.

Eastern

Mar.

3,

District

2016)
of

(surveying

Virginia

federal

opinions) .

5

circuit
However,

court
in

and

recent

decisions, the Fourth Circuit has expressly left open the question
of whether a lawyer proceeding prose "receives the benefit of
this liberal construction." Kerr, 824 F.3d at 72; see also Willner

v.

Dimon,

849

F.3d

93,

remains an open question,

103-104

(4th Cir.

2017).

Because

this

"[o] ut of an abundance of caution.

.

.and in accordance with the liberal construction [afforded to] a
prose complaint," the Court will "construe [Clowdis'] arguments

5

In the MEMORANDUM OPINION (ECF No. 77), the Court declined to
extend pro se status to Clowdis because he is a law school
graduate, had passed the bar examination, and would have been
admitted to practice law but for the Board's suspension of his
license. Id. at 9. The Fourth Circuit "decline [d] to address"
whether this was the proper course because "the construction of
the filings would not have altered the district court's rulings."
Clowdis v. Silverman, 666 Fed. Appx. 267, 271 n.3 (4th Cir. 2016).
11

as best [it] can . . . . " Kerr, 824 F.3d at 72.
II.

Motions to Dismiss under Fed. R. Civ. P. 12

The Commonwealth Defendants bring their MOTION pursuant to
Fed.

R. Civ.

P.

12(b) (1)

and 12(b) (6),

while the VCU Defendants

bring their MOTIONS pursuant to Fed. R. Civ. P. 12(b) (1), 12(b) (4),
and 12 (b) ( 6) .
The Court recently set forth the well-established principles
governing Rule 12(b) (1):
A party may file a motion to dismiss for lack
of subject matter jurisdiction under Fed. R.
Civ. P. 12 (b) (1). If a court finds that it
does not have subject matter jurisdiction over
the case or controversy, it must dismiss the
action. Of course, the plaintiff bears the
burden
of
establishing
that
federal
jurisdiction is proper.
Challenges to subject matter jurisdiction may
be made in two ways. First, a facial challenge
to jurisdiction may be made by arguing that
the complaint does not allege facts that
permit the exercise of federal subject matter
jurisdiction. If that type of challenge is
raised, the court must assume that all facts
alleged in the complaint are true. Second, the
challenge can be made under the theory that
the complaint's assertion of subject matter
jurisdiction is not true. In that event, a
court may consider evidence outside the
pleadings.
Andrews v. Taylor, No. 3:17-cv-533, 2018 WL 2108022, at *2
Va. May 7, 2018)

(E.D.

(citation omitted).

Motions to dismiss under Fed. R.

Civ.

P. 12(b) (4) test the

usufficiency of the form of . . . process, rather than the manner or
12

method by which it is served." Stewart v. Va. Commonwealth Univ.,
No.

3:09CV738,

2011 WL 1827735,

at *2

(E.D.

Va.

May 12,

2011)

(citation omitted).
Lastly, motions to dismiss based upon Fed. R. Civ. P. 12(b) (6)
are evaluated under the following standards:
In [considering a Fed. R. Civ. P. 12(b) (6)
motion to dismiss], we must accept the factual
allegations of the complaint as true and
construe them in the light most favorable to
the nonmoving party. To survive a 12 (b) (6)
motion, the "complaint must contain sufficient
factual matter, accepted as true, 'to state a
claim to relief that is plausible on its
face.'" A claim is "plausible on its face," if
a plaintiff can demonstrate more than "a sheer
possibility
that
a
defendant
has
acted
unlawfully."
Rockville Cars, LLC v. City of Rockville, 891 F.3d 141, 145 (4th
Cir.

2018)

(quoting Ashcroft v.

and Bell Atl. Corp.

v.

Iqbal,

Twombly,

556 U.S.

550 U.S.

54 4,

662,
570

678

(2009)

(2007) ) . The

Court "may consider documents attached to the complaint or the
motion to dismiss so long as they are integral to the complaint
and authentic." Rockville Cars, 891 F.3d at 145 (citation omitted).
Notwithstanding those basic principles,
not

"accept

as

true

a

legal

allegation." SD3, LLC v. Black
422

(4th Cir. 2015)

however,

conclusion
&

the Court does

couched

as

a

factual

Decker (U.S.) Inc., 801 F.3d 412,

(citation omitted).

the elements of a cause of action,

"Threadbare recitals of

supported by mere conclusory

statements, do not suffice." Iqbal, 556 U.S. at 678.
13

Finally, as this Court recently has held:
A statute of limitations defense may be
decided upon on a motion to dismiss [pursuant
to Fed. R. Civ. P. 12(b)(6)). Typically, a
court may only do so "if all facts necessary
to the affirmative defense 'clearly appear[ ]
on the face of the complaint.'" The Court does
not
read
this
principle
as
barring
consideration of other materials that may be
properly reviewed in resolving a motion to
dismiss.
Penn v.

1st S.

(E.D. Va. 2018)

Ins.

Servs.,

Inc.,

324 F. Supp.

3d 703,

714 n. 9

(citations omitted).
DISCUSSION

While this case involves a dizzying array of assertions and
allegations by Clowdis against the Defendants, at this point, the
Court faces one straightforward question:

do the damages claims

asserted in Counts I through IV of the SECOND AMENDED COMPLAINT
FOR MANDAMUS AND DAMAGES

(ECF No.

15)

survive the

Defendants'

MOTIONS TO DISMISS? The Court concludes that the answer is "no."
While

the

arguments

raised by

each

set

of

Defendants

in

support of their MOTIONS TO DISMISS are similar, the Court will
proceed to analyze each Defendant's MOTION separately,

and,

as

explained below, the Court will GRANT each of the MOTIONS.

I.

Commonwea1th Defendants' Motion to Dismiss (ECF No. 106)

The Commonwealth Defendants argue that all Counts should be
dismissed because

( 1)

the statutes of limitations have run;

( 2)

qualified and quasi-judicial immunity apply; and (3) Clowdis has
14

failed to state a claim. ECF No. 106 at 1-2; ECF No. 107 at 7. For
Count IV specifically, the Commonwealth Defendants assert Eleventh
Amendment immunity,

res

and collateral estoppel. 6 Id.

judicata,

Though somewhat difficult to discern,

Clowdis'

response argues

that the Virginia proceedings have not afforded Colorado law "full
faith and credit"; that the Commonwealth Defendants have violated
the

Double

Jeopardy

Clause

of

the

U.S.

Constitution;

that

Virginia's state proceedings were ultra vires; that the statutes
of limitations have not expired on his
immunity

does

not

apply;

immunity do not apply;

that

claims;

qualified

and

that

sovereign

quasi-judicial

that he has adequately stated claims to

survive a motion to dismiss; and that res judicata and collateral
estoppel do not apply. See generally ECF No. 114.
For the following reasons, the Court GRANTS the Commonwealth
Defendants' MOTION TO DISMISS
address

each

ground

for

{ECF No.

dismissal

106). The Court need not

raised

by

the

Commonwealth

Defendants. 7 The Court will deal with Counts I through III first,

6

With the exception of the res judicata and collateral estoppel
defense, which the Commonwealth Defendants argue is properly
considered under Fed. R. Civ. P. 12{b) {6), see ECF No. 107 at 21,
the Commonwealth Defendants do not specify under which Fed. R.
Civ. P. the Court should consider their MOTION TO DISMISS.
7

While it is necessary to resolve questions of subject matter
jurisdiction first, see e.g., Owen-Williams v. Higgs, No.DKC 180439, 2019 WL 448810, at *2 {D. Md. Feb. 5, 2019) {quoting OwensIllinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 {4th Cir. 1999)),
the only defense raised by the Commonwealth Defendants with
15

followed by Count IV.
A. Counts I through I I I

The Fourth Circuit has held that courts should "apply the
same substantive analysis to both the ADA and the Rehabilitation
Act '(b]ecause the language of the two statutes is substantially
the same.'" A Sec'y Without A Name v. Virginia, 655 F.3d 342, 34748

(4th Cir. 2011)

(quoting Doe v. Univ. of Maryland Med. Sys.

Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995)); see also Wicomico
Nursing Home v. Padilla, 910 F.3d 739, 750 (4th Cir. 2018) ("Claims
under the ADA's Title II and the Rehabilitation Act can be combined
for analytical purposes because the analysis is substantially the
same.") (citation omitted). Accordingly, it is appropriate for the
Court to consider Counts I through III together.
For following

reasons,

the Court grants the Commonwealth

Defendants' MOTION TO DISMISS as to Counts I through III under

potential subject matter jurisdiction implications is the Eleventh
Amendment defense (and that is only raised as to Count IV). The
Court has subject matter jurisdiction over Clowdis' federal law
claims in Counts I through IV under 28 U.S.C. § 1331 as his asserted
claims arise under various federal statutes.
The Commonwealth Defendants' qualified and quasi-judicial
immunity defenses to Counts I through III may properly be brought
under Fed. R. Civ. P. 12(b) (6). See Occupy Columbia v. Haley, 738
F.3d 107, 115-16 (4th Cir. 2013) (reviewing motion to dismiss based
on qualified immunity under Fed. R. Civ. P. 12 (b) (6)); Raub v.
Bowen, 960 F. Supp. 2d 602, 608 (E.D. Va. 2013) (same); Battle v.
Whitehurst, 831 F. Supp. 522 (E.D. Va. 1993) (deciding question of
judicial immunity under Rule 12(b) (6)).
16

Fed. R. Civ.

P.

12 (b) (6)

because the statute of limitations on

these Counts expired before Clowdis brought his lawsuit. See 1st
S. Ins. Servs., Inc., 324 F. Supp. 3d at 706, 714 n.9 (deciding
statute of limitations issue under Fed. R. Civ. P. 12(b) (6)).
(1) Statute of Limitations Bars Clowdis' Claims

Claims brought

under either Title

II

of the ADA or the

Rehabilitation Act must be brought within one year of the claim
accruing. A Soc'y Without A Name v. Virginia, 655 F.3d at 347-48.
Such a claim "accrues when the plaintiff 'knows or has reason to
know of the injury which is the basis of the action.'" Id. at 348
(quoting Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975)). If there
is a continuing legal violation by a defendant, that can start the
statute of limitations anew for each additional violation. See id.
But,

"to establish a continuing violation [,] the plaintiff

must establish that the unconstitutional or illegal act was a fixed
and continuing practice." Id. (quoting Nat'! Adver. Co. v. City of
Raleigh,

947

original).

F.2d 1158,

1166

(4th Cir.

1991))

(alteration in

That is, "if the plaintiff can show that the illegal

act did not occur just once, but rather in a series of separate
acts[,]

and if the same alleged violation was committed at the

time of each act,

then the limitations period begins anew with

each violation." Id.
original).

( internal quotations omitted)

(alteration in

The "continuing ill effects of an original violation.
17

. . do not constitute a continuing violation." Id.
To determine whether the statute of limitation bars Clowdis'
action on these Counts, it is necessary first to determine when
Clowdis brought his ADA and Rehabilitation Act claims.
(ECF No. 15) was filed on October 27, 2015.

The SAC

Prior to that date,

Clowdis had also filed several other documents: his COMPLAINT FOR
MANDAMUS AND DAMAGES

(ECF No.

4) ,

which indicates that it was

"received" by the Clerk of Court on March 3, 2015, 8 and his AMENDED
COMPLAINT

(ECF

No.

52),

which,

by

order

of

the

Court,

determined to be filed on March 28, 2015. See ECF No. 51.
Clowdis'

pro se status,

complaints,

and the

similarities

the Court will treat March 3,

was
Given

in these various

2015 as the starting

date for statute of limitations purposes because that is the date
on which Clowdis filed his first COMPLAINT. 9 Accordingly, any cause
of action must have accrued no later than March 3, 2014.
Construing Clowdis' SAC liberally, the Court concludes that
Counts

I

through

limitations.
the

8

III

are

barred

the

one-year

statute

of

According to the SAC, the last concrete action of

Commonwealth

Defendants of which Clowdis

The Court's ECF system, however,
was filed on April 5, 2015.
9

by

complains is

the

indicates that this document

The Defendants also treat March 3, 2015 as the filing date for
statute of limitations purposes. See, e.g., ECF No. 107 at 7; ECF
No. 109 at 8.
18

second Board hearing, at which Clowdis alleges the Board "turned
the de facto suspension [of his medical license] into an explicit
one."

SAC

55

<J[

"[e]vidence

(ECF No.

for

the

submission and/ or
HPMP,

the

Board,

Clowdis

expressly alleges,

2013

February

admission

Medical

As

hearing

was

15) .

into

evidence by

Deschenes,

and

withheld

Foster,

Harp,

from

Stewart,

preventing

Dr.

Clowdis from countering the Defendants' acts in violation of the
ADA,

Title I I." Id.

The Board hearing occurred on February 22,

2013. Id.; ECF No. 107 at 3. Clowdis' vague allegations all flow
from the suspension of his medical license, which occurred in 2007,
SAC
<J[

3, and was last dealt with at the February 2013 hearing. Id.

<J[

55.
It is thus clear on the

February 22,
about,

the

2013 hearing,
claims

that

face of the SAC that,

Clowdis knew,
he

asserts

after the

or had reason to know

against

the

Commonwealth

Defendants in Counts I through III. See A Sec'y Without a Name,
655 F.3d at 348. Rather than taking action, Clowdis waited more
than two years to act. 10
Perhaps recognizing that the statute of limitations dooms his
claims,

Clowdis

violations

10

by

makes

various

several

vague

defendants.

allegations

See

SAC

<J[

60

of

continuing

("Defendants,

Indeed, a search of the SAC does not yield a single reference
to any action that occurred in 2014, the year before Clowdis filed
the case.
19

including but not limited to the Medical Board and the NPDB, have
continued discriminatory acts against Dr. Clowdis to present. This
includes acts in retaliation of this complaint, whereby the Medical
Board reported false information against Plaintiff to the NPDB,
which the NPDB published, in June 2015."); id.

':I[

70 ("The Medical

Board continues to publish discriminatory communications to the
present, daily, by its own means and through the NPDB, in violation
of

the

ADA.") .

And,

in

his

response

brief,

he

suggests

equitable tolling applies because he was pursuing a

that

"different

remedy against defendants" and because the defendants used "fraud
to dissuade [him] from going to court," citing two Seventh Circuit
cases.

ECF No.

114 at 24.

The Court will address each of these

arguments in turn.
First,

as

explained

continuing violation,

more

fully

above,

to

there must be more than

establish

a

"continuing ill

effects of an original violation" and the plaintiff must establish
a

"fixed and continuing" illegal practice.

Name,

655

F. 3d at

348.

A Soc' y Without A

To the best of the Court's ability to

discern, the "continuing violation" that Clowdis complains of is
a report of "false information against Plaintiff" to the NPDB in
June 2015, which would be within the statute of limitations if it
represents a new violation.

SAC

':I[

60.

Other than citing cases

stating general propositions of law, Clowdis provides no authority
20

to

support

his

position

that

the

report

to

the

NPDB

would

constitute a "continuing violation" of the ADA or Rehabilitation
Act. Rather, based on a review of the SAC, it appears that Clowdis
is

complaining of

the

"continuing ill

violation," not an illegal pattern.

effects

of

an

original

A Soc' y Without A Name v.

Virginia, 655 F.3d at 348.

Therefore, the "continuing violation"

doctrine does not apply.

And,

because everything about which

Clowdis complains stems from the original suspension of his license
in 2007 and alleged improprieties during hearings in 2011 and 2013,
Counts I through III are barred by the statute of limitations.
Second,

the Court also rejects Clowdis'

equitable tolling

argument, raised for the first time in his response brief. ECF No.
114 at 24. The Supreme Court of the United States has instructed
that the equitable tolling doctrine is to be employed "sparingly."
See Irwin v.

Dep't of Veterans Affairs,

498 U.S. 89,

96

(1990);

see also CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 476
(4th Cir.

2015)

extraordinary
considerable

("Equitable tolling has long been considered an

remedy

in

this

circuit,

burden to demonstrate that

and

litigants

it applies.") .

Fourth Circuit has held:
The doctrine
has been applied in "two
generally distinct kinds of situations. In the
first, the plaintiffs were prevented from
asserting their claims by some kind of
wrongful conduct on the part of the defendant.
In the second, extraordinary circumstances
21

face
As

a
the

beyond plaintiffs' control made it impossible
to file the claims on time."
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)

(citations

omitted).
Clowdis' response brief (ECF No. 114) makes vague assertions
that

equitable

different

tolling

remedy

applies

against

"while

defendants"

a

plaintiff

and

pursues

that

Defendants

the

engaged in "fraud" to prevent him from going to court.

a

ECF No.

114 at 24. Clowdis does not clarify what he means by his first
point,

nor does this assertion fit within the Fourth Circuit's

test in Harris.
alleges

(he

As to the second point, the "fraud" that Clowdis
cites

misunderstanding

to

as

to

SAC
what

<JI<JI

the

4 6-4 7,
HPMP

55) ,

required.

reflects
That

his

Clowdis

misunderstood the terms of his suspension does not establish a
fraud on the part of the Commonwealth Defendants that would give
rise

to

equitable

tolling.

In

short,

Clowdis'

assertion

of

equitable tolling does not satisfy his heavy burden for the Court
to find that this "extraordinary remedy" applies to him. Wynne,
792 F.3d at 476.
For the foregoing reasons, the Court finds that the statute
of limitations stands as a bar to the claims asserted by Clowdis
in

Counts

I

through

III

against

the

Commonwealth

Defendants.

Accordingly, these Counts are dismissed as to these Defendants.

22

B. Count IV

As

discussed

above,

the

Commonwealth

Defendants

seek

dismissal of Count IV on the same grounds as they seek dismissal
of Counts I through III, as well as by an assertion of Eleventh
Amendment immunity and res judicata and collateral estoppel. See
ECF No. 106 at 1-2; ECF No. 107 at 7. 11

Clowdis brings Count IV

pursuant to the Fourteenth Amendment and 42 U.S.C.

§

1983 for

alleged procedural improprieties in his state medical licensure
proceedings. See SAC i i 88-97.
For

the

following

reasons,

the

Court

concludes

that

the

While not expressly stated in their briefing, it may be that the
Commonwealth Defendants did not raise the Eleventh Amendment
defense as to Counts I and III because Congress has abrogated
states' Eleventh Amendment immunity under the ADA or the
Commonwealth has waived it as to Rehabilitation Act claims. See 42
U.S.C. § 12202; United States v. Georgia, 546 U.S. 151 (2006)
(holding that Title II of ADA validly abrogates Eleventh Amendment
immunity to extent it creates a private cause of action for conduct
that actually violates the Fourteenth Amendment) ; Tennessee v.
Lane, 541 U.S. 509 (2004) (valid abrogation in cases implicating
fundamental right of access to the courts). Similarly, the Fourth
Circuit has held that state entities can waive Eleventh Amendment
immunity from suit under Section 504 of the Rehabilitation Act
when they accept "federal funds under a statute that clearly and
unambiguously condition[s] receipt of such funds on a waiver of
immunity." Constantine v. Rectors and Visitors of Geo. Mason Univ.,
411 F.3d 474, 496 (4th Cir. 2005).
11

The Fourth Circuit has held that "sovereign immunity is akin to
an affirmative defense, which the defendant bears the burden of
demonstrating." Hutto v. S.C. Retirement Sys., 773 F.3d 536, 543
(4th Cir. 2014). Accordingly, if the Commonwealth Defendants have
not raised it as a defense to Counts I through III, the Court need
not consider it.
23

Eleventh

Amendment

bars

this

claim

against

the

Commonwealth

Defendants.
(1) Eleventh Amendment Immunity Applies
against the Commonwealth Defendants

to Damages Claims

The Commonwealth Defendants argue that, in Section 1983 cases
for damages (as here), the Eleventh Amendment bars this Court from
exercising jurisdiction against the Commonwealth and its entities.
ECF No. 107 at 16-19. And, they argue that Clowdis' claims against
individual Commonwealth Defendants, although purportedly sued in
their "individual" capacities, are really damages claims against
the

Commonwealth,

so

they

too

must

be

dismissed

on

Eleventh

Amendment grounds. Id. at 17-19. The Court agrees.
The Eleventh Amendment "prohibits any suit in law or equity,
commenced or prosecuted

against

Citizens of another State,

one

of

the

United

States

by

or by Citizens or Subjects of any

Foreign State." Wicomico Nursing Home v. Padilla, 910 F.3d 739,
746 (4th Cir. 2018)

(quoting U.S. Const. amend. XI). The Amendment

also generally prevents citizens from bringing suits against their
own state in federal court. Id.; Litman v. George Mason Univ., 186
F. 3d 544,

549

(4th Cir.

1999). State agencies and entities are

also protected by a State's Eleventh Amendment immunity. Regents
of the Univ. of Cal. V. Doe, 519 U.S. 425, 429-30 (1997); Hutto v.
S.C.

Ret.

Sys.,

773 F.3d 536,

542

(4th Cir.

2014)

(citations

omitted); see also 17A Moore's Federal Practice, §123.23[4) [a] (3d
24

ed. 2017)

("The state's Eleventh Amendment immunity also extends

to any state agency that is an arm of the state government, such
as a

state health department,

because the agency is considered

part of the state.").
To determine whether a State agency or entity is entitled to
the State's Eleventh Amendment immunity,

courts are to analyze

"four nonexclusive factors":
(1) whether any judgment against the entity as
defendant will be paid by the State.
(2)
the degree of autonomy exercised by the
entity, including such circumstances as who
appoints the entity's directors or officers,
who funds the entity, and whether the State
retains a veto over the entity's actions; (3)
whether the entity is involved with state
concerns as distinct from non-state concerns,
including local concerns; and (4) how the
entity is treated under state law, such as
whether the entity's relationship with the
State [is] sufficiently close to make the
entity an arm of the State.
Lawson v. Union Cnty. Clerk of Court, 828 F.3d 239, 250 (4th Cir.
2016); DeBauche v. Virginia Commonwealth Univ., 7 F. Supp. 2d 718,
721-22

(E.D. Va. 1998)

(applying these factors to determine that

VCU is an arm of the state).
In damages actions pursuant to Section 1983, the Supreme Court
has held "that, absent waiver by the State or valid congressional
override, the Eleventh Amendment bars a damages action against a
State in federal court." See Kentucky v. Graham, 473 U.S. 159, 169

25

( 198 5)

(citing several cases) . 12

Furthermore, a State's Eleventh

Amendment protection from damages claims "remains in effect when
State officials are sued for damages in their official capacity."
Id.; Will v. Michigan Dep't of State Police, 491 U.S. 58

(1989).

Section 1983 is not a valid congressional abrogation of Eleventh
Amendment immunity, see Quern v. Jordan, 440 U.S. 332 (1979), and
the

Commonwealth

sovereign

Defendants

immunity."

ECF

assert

No.

107

that
at

they have

16;

see

"not waived

also

Madden

v.

Virginia, No. 3:11CV241, 2011 WL 2559913 (E.D. Va. June 28, 2011)
(holding in similar Section 1983 case that the Eleventh Amendment
barred damages claims against Virginia, the Department of Health
Professions, and the Virginia Board of Medicine).
However,

state officials may be sued under Section 1983 in

their individual capacities. See Hafer v. Melo, 502 U.S. 21 (1991).
The fact that a plaintiff characterizes a suit as an individual
capacity suit does not end the matter.

See Martin v.

Wood,

772

F.3d 192, 195-96 (4th Cir. 2014). The Court must "look beyond the
form of the complaint and the conclusory allegations against [state
officials]

to

determine"

if

the

12

State

is

the

real

party

in

There are three recognized exceptions to Eleventh Amendment
immunity:
congressional abrogation,
prospective injunctive
relief against state officers, and State waiver. See Lee-Thomas v.
Prince George's Cnty. Pub. Schs., 666 F.3d 244, 248-49 (4th Cir.
2012) (citations omitted). None are implicated by Count IV.
26

interest.

Id.

at 195. The Fourth Circuit requires the Court to

assess several factors to determine if the State is the real party
in interest:
(1) were the allegedly unlawful actions of the
state officials tied inextricably to their
official duties; ( 2) if the state officials
had authorized the desired relief at the
outset, would the burden have been borne by
the State; (3) would a judgment against the
state officials be institutional and official
in character, such that it would operate
against the State; (4) were the actions of the
state officials taken to further personal
interests distinct from the State's interests;
and (5) were the state officials' actions
ultra vires.
Id. at 196 (citations omitted).
Applying the controlling framework, the Court concludes that
the entity Commonwealth Defendants-the Commonwealth of Virginia;
the Department of Health Professions ("DHP"); the Virginia Board
of

Medicine

Commonwealth
Practitioners'
Virginia's

("Board"),
University

which

is

("VCU");

Monitoring Program

Eleventh

Amendment

a

part

and

the

of

DHP;

Virginia

Virginia
Heal th

("HPMP")-are all protected by

immunity.

See

Madden,

2011

WL

2559913 at *2-3 (holding that the Commonwealth, DHP, and Board are

all protected by Eleventh Amendment in similar Section 1983 case).
The reasoning in Madden applies in full force to the Commonwealth,
DHP, and the Board here.
Further, the Court agrees with Judge Spencer that, applying
27

the factors from Lawson,

828 F.3d at 250, "VCU is an arm of the

state

the

and

DeBauche,
factors

consequently,
7 F. Supp.

also

importantly,

shows

Eleventh Amendment

2d at 721-22.
that

HPMP

is

applies

here."

Application of the Lawson
an

arm of

the

state.

Most

HPMP is maintained by DHP and the Director of OHP

promulgates regulations for the operation of HPMP. See Va. Code§
54 .1-2516.

HPMP is also involved in the

monitoring physicians with impairments.

state-wide concern of

Consequently,

the Court

holds that the Eleventh Amendment bars Clowdis' assertion of Count
IV against the Commonwealth, DHP, the Board, VCU, and HPMP.
This

brings

the

analysis

Defendants-William Harp,

M.D.,

to

the

individual

Commonwealth

Executive Director of the Board;

Jennifer Deschenes, Deputy Executive Director of the Board; Sherry
Foster, of DHP; investigator Loretta Hopson-Bush of the Board; and
Amy

Stewart,

of

HPMP.

Clowdis

brings

suit

against

them all

"individually (personally) and in [their] official capacit[ies] ."
See SAC 11 9-12, 15. To the extent that these Defendants are sued
in their official capacities, those damages claims are barred by
the

Eleventh Amendment.

Additionally,

Kentucky v.

Graham,

473

U.S.

at

applying the factors set forth in Martin v.

169.
Wood,

772 F.3d 192, the Court concludes that the "individual" capacity
suits are really suits against the Commonwealth, and must fail on
Eleventh Amendment grounds.
28

First,

it

is

clear

that

the

violations

of

which Clowdis

complains as allegedly committed by these Defendants were "tied
inextricably to their official duties." Wood, 772 F.3d at 196. The
essence of Clowdis' complaint against these Defendants is how they
performed their official duties in investigating and suspending
his medical license. See SAC~~ 31, 37-38, 52, 89, 95. Second, the
Commonwealth, not the individual Defendants, would have borne the
burden of reinstating Clowdis' license. Third, a judgment against
these

officials

Commonwealth

would

itself.

be

institutional

ECF No.

107

at

and

18.

paid

Fourth,

for
there

by

the

is

no

evidence that the actions by the individual Defendants were "to
further personal interests," but rather were done as part of their
role of investigating the suspension of Clowdis' medical license.
Wood,

772 F.3d at 196. Lastly, Clowdis has not established that

the actions of the individual Defendants were ultra vires; rather,
they were done as part of these officials' duties. See SAC i i 31,
37-38,

52,

89,

recharacterize

95.
his

For these
suit

against

reasons,
the

Clowdis'

individual

attempts to
Commonwealth

Defendants fails, and the Eleventh Amendment protects them too.
C. Conclusion
Individual)

as

to

Commonweal th

Defendants

(Entity

and

For the reasons set forth above, the Commonwealth Defendants'
THIRD AMENDED MOTION TO DISMISS

( ECF No.

10 6)

is granted,

Counts I through IV of the SAC are dismissed with prejudice.
29

and

VCU Defendants' Motion to Dismiss (ECF Nos. 108, 129)

II.

The Court next turns to the two pending MOTIONS TO DISMISS by
the VCU Defendants (ECF Nos. 108, 129).
that,
(2)

for all Counts:

that

the

VCU

( 4)

the statutes of limitations have run;

Defendants

various theories;
8. 01-20. l;

( 1)

( 3)

The VCU Defendants argue

are

immune

from

the

claims

that Clowdis failed to follow Va.

under
Code §

that Clowdis failed to serve the VCU Defendants

with sufficient process;

(5) that Clowdis failed to timely exhaust

his administrative remedies;

and

(6)

that Clowdis has failed to

state a claim for relief. ECF No. 109 at 2-3; ECF No. 130 at 2-3.
Clowdis opposes the MOTIONS for essentially the same reasons as he
opposed the

Commonwealth

Defendants'

MOTION.

See generally ECF

Nos. 115, 131.
As an initial matter, the Court notes that the VCU Defendants
brought a Fed. R. Civ. P. 12(b) (1) MOTION TO DISMISS asserting a
lack

of

subject

limitations
Eleventh

matter

jurisdiction

because:

had expired and that various

Amendment,

qualified

immunity,

the

statutes

immunities,
and

of

including

judicial

immunity

prevented the Court from exercising subject matter jurisdiction.
ECF No.

109 at 8-11;

ECF No.

130 at 3-8.

While the Court must

always assure itself of its subject matter jurisdiction, a MOTION
TO DISMISS on statute of limitations grounds is properly considered
under Fed.

R.

Civ.

P.

12(b) (6).

See Penn v.
30

1st S.

Ins.

Servs.,

Inc., 324 F. Supp. 3d 703, 714 n.9 (E.D. Va. 2018). Thus, the Court
considers the statute of limitations defense not as a limitation
on its subject matter jurisdiction, but as a failure to state a
claim under 12(b) (6). And,

as discussed supra note 7,

the Court

may consider the non-Eleventh Amendment immunities under Fed. R.
Civ. P. 12 (b) (6) as well.
Insofar

as

the

VCU

Defendants

assert

Eleventh

Amendment

immunity, the Court again notes that "sovereign immunity is akin
to an affirmative defense, which the defendant bears the burden of
demonstrating." Hutto v. S.C. Retirement Sys., 773 F.3d 536,

543

(4th Cir. 2014). The Supreme Court has not yet decided "whether
Eleventh

Amendment

immunity

goes

to

a

court's

subject

matter

jurisdiction." Id. at 542-43 (internal quotations omitted). While
the "trend" is to consider Eleventh Amendment arguments under Rule
12(b)(l)

(verses 12(b)(6)), the Fourth Circuit has yet to decide

this question. Taylor, 2018 WL 2108022, at *4 (citation omitted);
Quigley v. McCabe, No. 2:17cv70, 2017 WL 3821806, at *2 (E.D. Va.
Aug. 30, 2017).
Given

the

Fourth

Circuit's

holding

in

Hutto

that

the

"defendant bears the burden of demonstrating" the applicability of
Eleventh Amendment immunity, 773 F.3d at 543, the Court concludes
that,

as

claims),

to

Counts

I

through

III

(ADA and Rehabilitation Act

the VCU Defendants have failed to satisfy their burden
31

that

the

Eleventh Amendment

applies

to them and these

Counts.

Nowhere in their briefing do the VCU Defendants discuss the ADA's
express abrogation of Eleventh Amendment immunity, see 42 U.S.C.
§ 12202, the Supreme Court's decisions regarding Title II of the
ADA's abrogation of the Eleventh Amendment, see United States v.
Georgia,

546 U.S.

151

(2006);

Tennessee v.

Lane,

541 U.S.

509

(2004), or the Fourth Circuit's decision in Constantine, 411 F.3d
474

(4th

Cir.

2005)

(waiver

of

sovereign

immunity

under

the

Rehabilitation Act). Because the VCU Defendants have not cited or
analyzed the impact of these authorities with regard to Counts I
through III, the Court finds that they have not established that
the Eleventh Amendment bars the Court's jurisdiction as to these
Counts.
The Court also finds that the VCU Defendants have failed to
satisfy their burden to establish that the Eleventh Amendment bars
Count IV against them. See ECF NO. 130 at 4-5. The VCU Defendants
assert that the VCU Health System Authority is a state entity, but
do not make an argument about the role of MCVAP as a state entity.
See id.

Then,

the VCU Defendants assert that "Dr.

Silverman is

also immune from claims in his official capacity" and that "his
employers, VCUHSA and MCVAP" are thus immune.

Id.

In a footnote,

the VCU Defendants attempt to "incorporate" an entire argument
made by the Commonwealth Defendants about the Eleventh Amendment
32

protection of HPMP.
such

conclusory

satisfies

the

Id.

at 5 n.1.

assertions

VCU

Defendants'

and

The Court does not find that
incorporation

burden

to

by

reference

demonstrate

that

the

Eleventh Amendment applies to them as to Count IV.
In sum, the VCU Defendants have failed to meet their burden
to

establish

Defendants'

an

Eleventh

Amendment

defense.

However,

the

VCU

MOTION TO DISMISS may be properly considered under

Fed. R. Civ. P. 12(b) (6), and the Court now will turn to that task.
A. Counts I through I I I

As it did with the Commonwealth Defendants' MOTION, the Court
considers Counts I through III together. See, e.g., A Soc'y Without
A

Name v.

Virginia,

655

F. 3d at 34 7-4 8.

And,

for very similar

reasons, the motion (ECF No. 108} made by the VCU Defendants will
be granted.
(1) Statute of Limitations Bars Clowdis' Claims

The one-year statute of limitations on Counts I through III
clearly bars these Counts as to the VCU Defendants. As explained
above, any claims under Counts I through III must have accrued by
March 3, 2014.

The SAC demonstrates that the last allegation by

Clowdis that can even remotely be construed to apply against the
VCU

Defendants

is

Silverman's

"independent medical

evaluation"

done in preparation for the 2011 license hearing and "testimony"
of

Silverman

at

the

hearing

on
33

May

11,

2011.

SAC

'.lI'.lI

49,

3.

Accordingly, at the latest, any of Clowdis' claims under Counts I
through III must have been brought by or around May 11,

2012.

Instead, they were brought on March 3, 2015. Thus, they are time
barred.
The arguments made by Clowdis for continuous violation and
equitable tolling as to the VCU Defendants are even weaker than
they are against the Commonwealth Defendants. Paragraph 60 of the
SAC states, "Defendants, including but not limited to the Medical
Board and the NPDB, have continued discriminatory acts against Dr.
Clowdis

to present.

complaint,

This

includes acts

in retaliation of this

whereby the Medical Board reported false information

against Plaintiff to the NPDB, which the NPDB published, in June
2015." SAC

<:II

60. While the VCU Defendants are "Defendants" in this

case, Clowdis' broad allegation of continuing violations does not
even mention anything tied to the VCU Defendants. In his response
brief,

Clowdis argues that "ex parte communications between VCU

Defendants

and

Commonwealth

Defendants"

and

the

fact

that

"Silverman was provided a copy of this complaint by Court Order,
entered April 6, 2015," establishes a continuing violation as to
the

VCU

Defendants.

ECF

No.

115

at

10,

17.

Those

conclusory

allegations do not establish a continuing violation of either the
ADA or the Rehabilitation Act by the VCU Defendants.
Clowdis

has

not made

any

showing that
34

"some

Similarly,

kind of wrongful

conduct on the part of the

[VCU Defendants]" or "extraordinary

circumstances beyond [Clowdis'] control made it impossible to file
the claims on time" in order to invoke equitable tolling. Harris,
209 F.3d at 330.
Accordingly, the Court will grant the VCU Defendants' MOTION
TO DISMISS (ECF No. 108) as to Counts I through III.
B. Count :rv

As with Counts I through III, the Court also concludes that
Clowdis' claim in Count IV against the VCU Defendants fails under
the applicable statute of limitations. The MOTION TO DISMISS as to
this Count (ECF No. 129) is granted.
(1) Statute of Limitations Bars Clowdis' Claims

Count IV alleges a due process violation pursuant to the
Fourteenth Amendment and 42 U.S.C. § 1983.

There is no statute

of limitations in 42 U.S.C. § 1983, so courts borrow an analogous
state statute of limitations. See Lewis v. Richmond City Police
Dep't, 947 F.2d 733, 735 (4th Cir. 1991). The Supreme Court of the
United States has held that courts should apply a state's statute
of limitations for personal injury actions to Section 1983 actions.
See Owens v. Okure, 488 U.S. 235, 239-242 (1989); Wilson v. Garcia,
471 U.S. 261 (1985) In Virginia, federal courts apply the state's
two-year statute of limitations for personal injury claims to
Section 1983 claims. See A Society Without A Name,
35

655 F.3d at

348;

Lewis,

947

F.2d at

735;

Va.

Code

§

8.0l-243(A)

("[E]very

action for personal injuries, whatever the theory of recovery . .
. shall

be brought within two

accrues,,,).

years

after the

cause

of action

And, a "civil rights claim accrues when the plaintiff

knows or has reason to know of the injury which is the basis of
the action." A Society Without A Name, 655 F.3d at 348
quotation omitted) .

Accordingly,

(internal

Clowdis must have brought his

Section 1983 claim for the alleged due process violation within
two years of "know[ing] or [having] reason to know of the injury.,,
Id.
Reviewing Count IV of the SAC for allegations against the VCU
Defendants

reveals

that

Clowdis

makes

vague

allegations

that

various Defendants "arbitrarily and irrationally classified and
discriminated against

[him]

based on perceived disabilities and

other characteristics" in violation of due process, SAC '.II 89; that
"additional terms and conditions were assessed against Dr. Clowdis
despite a conflict of interest on the part of Dr. Silverman and
his HPMP," id.

err

93; and that various Defendants "continued" to

violate his due process rights. Id.<[<[ 94-97. The last date certain
in the allegations is the second Board hearing, held on February
22,

2013.

Id.

at 95-96. Clowdis thus had until February 2015 to

bring his claim. He did not bring this suit until March 3, 2015,
meaning that it is time-barred. See A Society Without A Name, 655
36

F.3d at 348; Lewis, 947 F.2d at 735; Va. Code§ 8.0l-243(A).
However, that conclusion is a perhaps too-generous reading of
the SAC's allegations against the VCU Defendants. In reality, what
Clowdis complains about as to the VCU Defendants is Dr. Silverman's
conflict of interest as the CEO of the HPMP. i i 49, 50, 51, 55.
This, Clowdis alleges, tainted the May 2011 Board hearing, see,
~

id. i 50-51, a taint that Clowdis asked the Board of Medicine

to reconsider at the February 2013 hearing.

Id.

i

55. Clowdis'

Section 1983 claims against the VCU Defendants, then, accrued in
May 2011, and must have been brought by May 2013. Under either
reading of the SAC, Count IV is time-barred.
Finally,

neither

equitable

tolling

nor

the

"continuing

violation" doctrine saves Count IV as to the VCU Defendants. Other
than conclusory allegations of continuing violations, Clowdis has
alleged nothing to establish that either of these doctrines apply.
C. Conclusion as to VCU Defendants

For the reasons set forth above, all four Counts against the
VCU defendants will be dismissed with prejudice.
CONCLUSION

For the foregoing reasons, the THIRD AMENDED MOTION TO DISMISS
(ECF No. 106); RENEWAL AND SUPPLEMENTATION OF MOTIONS TO DISMISS
BY

DEFENDANTS

PHYSICIANS;

JOEL

JEREMY

SILVERMAN,

M.D.;

MCV

ASSOCIATED

AND VIRGINIA COMMONWEALTH UNIVERSITY HEALTH SYSTEM
37

AUTHORITY (ECF No. 108); and SECOND RENEWAL AND SUPPLEMENTATION OF
MOTIONS TO DISMISS BY DEFENDANTS JOEL JEREMY SILVERMAN, M.D.; MCV
ASSOCIATED PHYSICIANS; AND VIRGINIA COMMONWEALTH UNIVERSITY HEALTH
SYSTEM AUTHORITY (ECF No. 129) are GRANTED in their entirety.
The Court dispenses with oral argument because the facts and
legal conclusions are adequately presented in the materials and
oral argument would not aid in the decisional process.
The Clerk is directed to send a copy of this Memorandum
Opinion to the Plaintiff.
It is so ORDERED.

Isl
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: March JLI{_, 2019

38